746 F.

2d 225

Linwood E. BRILEY, Appellant,

v.
E.L. BOOKER, Warden, Appellee.
No. 84-4006.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 9, 1984.
Decided Oct. 9, 1984.

William H. Allen, Washington, D.C. (William E. O'Brian, Jr., Timothy C.

Hester, Covington & Burling, Washington, D.C., Deborah C. Wyatt,
Charlottesville, Va., on brief), for appellant.
James E. Kulp, Sr. Asst. Atty. Gen., Richmond, Va., (Gerald L. Baliles,
Atty. Gen., Richmond, Va., on brief), for appellee.
Before RUSSELL, WIDENER and HALL, Circuit Judges.
PER CURIAM:

On September 24, 1984, Linwood E. Briley filed his second petition for habeas
corpus relief pursuant to 28 U.S.C. Sec. 2254, challenging the constitutionality
of his 1980 capital murder conviction and resulting death sentence. After full
briefing of the issues the district court granted summary judgment in favor of
the respondents and dismissed the habeas corpus petition. That court granted a
certificate of probable cause allowing an appeal to this court. After full
consideration of the issues raised in the briefs and after oral argument, we
affirm the district court's denial of habeas corpus relief.

The district court had previously rejected a petition for habeas corpus filed in
May, 1983, as amended in September, 1983, by Briley. Briley v. Bass, 584
F.Supp. 807 (E.D.Va.1984). This court affirmed that denial in Briley v. Bass,
742 F.2d 155 (4th Cir.1984). The issues raised by Briley in his present petition
were not raised in the prior petition. The facts leading to Briley's capital murder
conviction have been adequately set out in this court's prior opinion and in the

opinion of the Virginia Supreme Court following Briley's direct appeal. Briley
v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980). We need not restate
them here. The district court's opinion more than adequately sets out the many
state and federal petitions filed by Briley.
3

In his present habeas corpus petition Briley challenges the constitutionality of

his conviction on two grounds. First he claims that his eighth and fourteenth
amendment rights were violated because veniremen unalterably opposed to the
death penalty were stricken for cause from the jury. [Petition at 5] Briley finds
support for this argument in a reserved question in Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 and esp. n. 18 (1968); the district
court's opinion in Keeten v. Garrison, 578 F.Supp. 1164, 1165
(W.D.N.C.1984), rev'd., 742 F.2d 129 (4th Cir.1984); and Grigsby v. Mabry,
569 F.Supp. 1273 (E.D.Ark.1983).

Second, Briley contends that the death penalty in Virginia is imposed in an

arbitrary, capricious, and discriminatory manner in violation of the eighth and
fourteenth amendments because a capital murder defendant is more likely to be
sentenced to death for killing a white person than for killing a black person.
[Petition at 7]. For this contention Briley relies on a study by Gross and Mauro
made available in October, 1983, [Briley memo at 61]. This argument was
likewise presented to the Fifth Circuit in Spinkellink v. Wainwright, 578 F.2d
582, 613 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d
796 (1979).

The district court rejected Briley's claims on both procedural and substantive
grounds.

First it found an abuse of the writ under Rule 9(b) of the Rules Governing 28
U.S.C. Sec. 2254 because both new issues raised here could have been raised in
his prior proceedings. In his attack on the jury selection Briley relies on
Witherspoon, decided over fifteen years ago. As the district court in Grigsby
and our opinion in Keeten show, this issue is not a new one but one recognized
by the legal profession prior to Briley's first habeas corpus filing in 1983.
Likewise the data upon which Briley relies to challenge the application of the
Virginia death penalty and the argument itself were available prior to action on
the first habeas corpus petition. We find no error in the district court's ruling
that Briley had abused the writ by not raising these issues earlier. This
conclusion of the district court conformed clearly to the Supreme Court's
reasoning in Woodard v. Hutchins, --- U.S. ----, 104 S.Ct. 752, 78 L.Ed.2d 541
(1984). In that case--as here--the petitioner had filed a second petition for
habeas relief in which for the first time he raised for the same reasons as the

petitioner in this case "that the jury selection process was unconstitutional."
The Court, speaking through Justice Powell, then proceeded to declare:
7

"Hutchins offers no explanation for having failed to raise these claims in his
first petition for habeas corpus, and I see none. Successive petitions for habeas
corpus that raise claims deliberately withheld from prior petitions constitute an
abuse of discretion." At ----, 104 S.Ct. at 753, 78 L.Ed.2d at 544.

In explanation of the term "deliberately withheld," Justice Powell in note 3 said:

"There is no affirmative evidence that the claims were deliberately withheld.

But Hutchins has had counsel throughout the various phases of this case, and
no explanation has been made as to why they were not raised until the very eve
of the execution date."

10

Justice Powell concluded his opinion with this significant statement:

11

"A pattern seems to be developing in capital cases of multiple review in which

claims that could have been presented years ago are brought forward--often in a
piecemeal fashion--only after the execution date is set or becomes imminent.
Federal courts should not continue to tolerate--even in capital cases--this type of
abuse of the writ of habeas corpus."

12

Equally well known was petitioner's second substantive point. It was a matter
that had often been raised in the legal and sociological journals and in dicta in
various court decisions. See Spinkellink v. Wainwright, supra, 578 F.2d at 61214.

13

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), also
bars the raising of these issues in a federal habeas corpus petition because
neither was raised at trial. We agree with the district court that Reed v. Ross, --U.S. ----, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), provides no relief from
Wainwright's bar.

14

We further agree with the district court's rejection of Briley's two claims on the
merits. Our recent opinion in Keeten, supra, is dispositive in this court of the
jury challenge under Witherspoon. Moreover, the decision by the Supreme
Court in Hutchins is fully supportive of Keeten.

15

The petitioner's second substantive claim is that the Virginia death penalty

statute is unconstitutional in application because a defendant is more likely to

receive the death penalty when his victim is white than when the victim is
black. This theory carries with it, as the petitioner candidly conceded in oral
argument, the conclusion that the imposition of the death penalty in any case
would be constitutionally proscribed. His reasoning is that it is unconstitutional
discrimination to make the killing of a white more likely to result in a death
sentence, than the killing of a black person. Ergo, any death sentence for killing
a white, whether by a white or by a black, is constitutionally invalid. But this
argument would lead to denying to a state the right to impose a death sentence
for killing a black, for, again, there would be discrimination. This is equivalent
to an implicit invalidation per se of the death penalty on constitutional grounds.
We are unwilling to hold on constitutional grounds that capital punishment is
invalid, which is precisely what petitioner's argument requires, as petitioner's
counsel, with commendable candor, concedes. Actually, this contention was
carefully considered and properly disposed of by the court in Spinkellink,
supra, 578 F.2d at 612, 613-14. In addition, as Briley notes the Virginia
statistics in support of this argument presented are wholly inconclusive.
16

Accordingly, we affirm the judgment of the district court dismissing the

petitioner's habeas corpus petition, both on the procedural and the substantive
grounds stated therein, and direct the mandate issue forthwith.

17

Further, the motion of the petitioner for a stay of execution, filed September 27,
1984, is hereby denied.